Preview
FILED: QUEENS COUNTY CLERK 03/30/2021
08/19/2021 03:22
03:51 PM INDEX NO. 703721/2018
NYSCEF DOC. NO. 44
83 RECEIVED NYSCEF: 03/30/2021
08/19/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
THALIA AGATHOCLEOUS,
7 20 8
Plaintiff(s),
AFFIRMATION IN
-against- CROSS-
SUPPORT OF
MOTION AND
795 FIFTH AVENUE CORPORATION d/b/a THE AFFIRMATION IN
PIERRE '
OPPOSITION TO
DEFENDANT'S
Defendant(s).
MOTION
___
Albert R. Matuza, Jr.,Esq., an attorney admitted to practice in the State of New York, affirms
the following under penalty of perjury:
1. That I am an associate of the law firm of Sacco & Fillas, LLP, the attorneys of record for
the plaintiff, and as such am thoroughly conversant with the facts and circumstances
herein based upon the contents of the filemaintained by this office.
2. I make this affirmation in in support of the instant cross-motion for an Order pursuant
to New York Civil Practice Law and Rules ("C.P.L.R.") Rule, 3025 (b), and
3025(c), granting leave to amend a pleading and in opposition to the within motion
made by the defendant, which seeks an Order: a. Striking the plaintiff's purported
"Supplemental"
Verified Bill of Particulars, dated February 3, 2021. b. Precluding
plaintiff from offering any evidence at trial in connection with the purported
"Supplemental"
Verified Bill of Particulars, dated February 3, 2021 and allege fracture
of right posterior eight rib, blunting of a costophrenic angle, pleural fluid and the lost
earnings claim; and c. Granting such other and further relief as the court deems just and
proper.
3. Pursuant to the Compliance Conference Order, dated January 9, 2019, plaintiff was to
file her Note of Issue and Certificate of Readiness on or before September 6, 2019. In
compliance with the rules of this Court, plaintiff filed her Note of Issue and Certificate
SACCO& mLAS, LLP
1 of 7
FILED: QUEENS COUNTY CLERK 03/30/2021
08/19/2021 03:22
03:51 PM INDEX NO. 703721/2018
NYSCEF DOC. NO. 44
83 RECEIVED NYSCEF: 03/30/2021
08/19/2021
of Readiness on September 3, 2019 despite there being outstañdiñg discovery, including
defendant's Response to Plaintiff's Post Deposition Demands for Discovery. Annexed
"A"
hereto as Exhibit please find a copy of the Compliance Conference Order. An-n-exed
"B"
hereto as Exhibit is a copy of Note of Issue and Certificate of Readiness. Annexed
"C"
hereto as Exhibit is a copy of the Response to Plaintiff's Post Deposition Demands
for Discovery.
"new"
4. The purported injuries that plaintiff plead in the Supplemental Verified Bill of
Particulars, dated February 3, 2021, were from an X-Ray report from Neighborhood
Radiology of the bilateral ribs that was taken on March 1, 2018. A copy of this report is
annexed hereto as Exhibit "D". Plaintiff provided an authorization for films and reports
from Neighborhood Radiology in Plaintiff's Responses to Combined Demands, dated
June 8, 2018, a copy which is also annexed hereto as Exhibit "D". Also included in
"D"
Exhibit are authorizations for plaintiff's employment fileand file from the Worker's
Compensation Board. Another authorization for the file from the Worker's
Compensation Board was provided by way of correspondence, dated September 11,
2018. A copy of this correspondence is annexed hereto as Exhibit "E".
5. Plaintiff exchanged Ali Guy, M.D. as an expert pursuant to CPLR Section 3101 (d) on
May 12, 2020. In Dr. Guy's report, which was annexed to this exchange, Dr. Guy noted
"4"
that he reviewed the X-Ray report of the ribs (See paragraph of page "1") and his
healed." "4"
diagnoses included "Status post fracture of the eight rib, now (See number
"Diagnosis" "F"
of the Section titled on page 2). Annexed hereto as Exhibit is a copy of
the aforesaid expert exchange.
6. The plaintiff appeared for her deposition on March 9, 2019. Plaintiff testified that after
her fall she feltpain to her ribs, which was mostly on her right side. See the deposition
"G"
transcript annexed hereto as Exhibit at p. 42, line 12 to p. 44, line 7. Also, at this
deposition defense counsel questioned the plaintiff about her employment, including her
amount of pay, work schedule and amount of time she has been employed. At this time,
SACCO& FILLAS,LLP
2 of 7
FILED: QUEENS COUNTY CLERK 03/30/2021
08/19/2021 03:22
03:51 PM INDEX NO. 703721/2018
NYSCEF DOC. NO. 44
83 RECEIVED NYSCEF: 03/30/2021
08/19/2021
the plaintiff was not pursuing a claim for lost wages. See Exhibit "G", p. 12, line 8 to p.
21, line 19.
7. On December 29, 2020, plaintiff commenced a related action against IHMS, Inc. under
"H"
Index Number 725313/20. Annexed hereto as Exhibit are a copy of the Summons
and Complaint and Verified Answer to Verified Complaint. Counsel for the defendant in
this action also represents the defendant in the action under Index Number 725313/20.
Defense counsel then filed a motion to consolidate. In a stipulation, dated March 5,
2021, the parties in both actions agreed to consolidate for all purposes this action with
the action under Index Number 725313/20 and agreed to deadlines pertaining to
"I"
outstanding discovery. Annexed hereto as Exhibit is a copy of the aforesaid
stipulation.
8. In the defendant's within motion, the defendant does not provide any examples of
prejudice by service the aforesaid Supplemental Verified Bill of Particulars after the
filing of the Note of Issue and Certificate of Readiness and cannot claim any prejudice.
Defendant was served with an authorization for the X-Ray report applicable to the
"1"
claims in response number the Supplemental Verified Bill of Particulars prior to the
plaintiff filing her Note of Issue and Certificate of Readiness on September 3, 2019.
Likewise, defendant was served with authorizations for the employment fileand
Worker's Compensation Board prior the filing of the Note of Issue and Certificate of
Readiness and are aware the plaintiff missed time from work and are aware of the
amount of any lost wages claim. If the defendant wants a further deposition limited to
plaintiff's lost wages claim, the defendant's counsel could have served a notice of
deposition or contact this office to schedule it,both of which have not been done.
Therefore, itis the position of this office that defendant has waived their right to a
further deposition. Currently, there is no trialdate and due to the COVID-19 pandemic,
likely will not be a trialdate for quite a bit of time, thus giving defense more than
enough time to properly prepare any defenses of these claims in the aforesaid
SACCO& FILLAS,LLP
3 of 7
FILED: QUEENS COUNTY CLERK 03/30/2021
08/19/2021 03:22
03:51 PM INDEX NO. 703721/2018
NYSCEF DOC. NO. 44
83 RECEIVED NYSCEF: 03/30/2021
08/19/2021
Supplemental Verified Bill of Particulars. Further, the two related actions were just
consolidated.
9. However, if thisCourt were to find that this Supplemental Verified Bill of Particulars is
an amendment, then this Court should order the document be titledan Amended
Verified Bill of Particulars or plaintiff should be granted leave to serve an Amended
Verified Bill of Particulars.
ARGUMENT
IF THIS COURT DOES NOT FIND THE BILL OF PARTICULARS TO BE A
SUPPLEMENT, THEN PLAINTIFF SHOULD BE GRANTED LEAVE TO AMEND
HER PLEADING
A Leave to amend should be eranted under C.P.L.R., R. 3025(b).
10. Leave should be granted under CPLR 3025 (b). Under New York law, it iswell
settled that in the absence of prejudice, a plaintiff should be permitted to amend a
pleading to add meritorious allegations (C.P.L.R. 3025[b]); A. W. v. County of
(4th
Oneida. 34 A.D.3d 1236. 827 N.Y.S.2d 790 Dept., 2006); see also Greco v. Five
Com.• (2nd
Garage 123 A.D.2d 422 506 N.Y.S.2d 726 Dept., 1986)[permitting
injury"
plaintiff to amend the pleading to include a specific allegation of "serious
even after defendants move for summary judgment on the question of "serious
(3"I
injury"][empliasis added]; Secore v. Allen, 27 A.D.3d 825, 811 N.Y.S.2d 170
Dept., 2006)(permitting plaintiff to amend his pleading to allege specifically that his
loss"
loss exceeded "basic economic under C.P.L.R., R. 3016(g), where pleadings
and disclosure gave defendants notice of the occurrences and plaintiffs losses, and
noting that potential for increased liability of defendants could not qualify as
prejudice warranting denial of the amendment]. Here, no prejudice is possible
the defendant had since June of 2018 an authorization for the X-
because, already
SACCO& FILLAS,LLP
4 of 7
FILED: QUEENS COUNTY CLERK 03/30/2021
08/19/2021 03:22
03:51 PM INDEX NO. 703721/2018
NYSCEF DOC. NO. 44
83 RECEIVED NYSCEF: 03/30/2021
08/19/2021
Ray report and films showing the fractured ribs. Plaintiff testified to injuring her
ribs at her deposition. Dr. Guy offered a diagnosis pertaining to the ribs. Defendant
already questioned the plaintiff on her employment at her deposition and this office
already provided authorizations for plaintiff's employment file and file from the
Worker's Compensation Board. There is no trial date in this action. Defendant is not
prejudiced by any delay in including these claims in any Verified Bill of Particulars.
11. Stated simply, with the disclosure of the pertinent discovery and the testimony had,
and the arguments made, itwould be nearly impossible for the defense to argue that,
there is prejudice in the leave being granted. And, the proposed
supplement/amendment does not add a new cause of action, does not add a new
allegation, but, merely refines and adds clarification to the pleading (Bill of
Particulars). It contains minor "refinements, and does not amend/change the
allegations that were already there, beyond supplementing them as is done regularly
through the preparation of trial. Here the amendment sought is to simply ensure that,
it isincluded in the claim explicitly.
B. Leave to amend should be eranted under C.P.L.R.. R. 3025(c).
12. Further, under New York law, it iswell settled that in the absence of prejudice or
surprise, a plaintiff should be permitted to amend a pleading to conform to the
evidence adduced. Indeed, "[1]eave to conform a pleading to the proof pursuant to
C.P.L.R. 3025(c) should be freely granted absent prejudice or surprise resulting from
delay.'.'
the Alomia v. New York City Tr. Auth., 292 A.D.2d 403, 406, 738 N.Y.S 2d
695 (2nd Dept., 2002); see also Worthen-Caldwell v. Special Touch Home Care
(2nd
Serv.. Inc.. 78 A.D.3d 822, 911 N.Y.S.2d 122 Dept., 2010). In fact, relative
"lateness" Worthen-
is no--absent significant prejudice-------even a barrier to amendment.
Caldwell v. Special Touch Home Care Serv.. Inc.. 78 A.D.3d at 822[granting of
SACCO& FILLAS,LLP
5 of 7
FILED: QUEENS COUNTY CLERK 03/30/2021
08/19/2021 03:22
03:51 PM INDEX NO. 703721/2018
NYSCEF DOC. NO. 44
83 RECEIVED NYSCEF: 03/30/2021
08/19/2021
amendment was proper despite delay]; see also, Dimoulas v. Roca. 120 A.D.3d 1293,
(2nd
993 N.Y.S.2d 56 Dept. 2014)[granting of leave, on even of trialwas proper given
totality of circumstances]; Eisenhauer v. Brun 41 Misc.3d 667, 971 N.Y.S.2d 200
(Westchester Sup. 2013)[defects in pleading- failure to set forth facts to support
claim of sole ownership-were not a barrier to amendment through trial motion to
amend pleading to conform with proof]; Dickstein v. Doelia, 303 A.D.2d 443, 757
(2nd
N.Y.S.2d 443 Dept., 2003). Further, there is no prejudice by an amendment
when the defendant has been on notice that catheter care was an issue. Durant v.
Glen Cove Center for Nursing & Rehabilitation. et al., Index No. 703555/16 (Queens
Sup. 2019).
13. Given the above, and the fact that there is no surprise or prejudice, if this Court does
not find the aforesaid bill of particulars to be a supplement, this Honorable Court
should grant leave to consider the previously served supplemental pleading as an
amendment.
14. This is the only time relief requested herein has been sought from any court.
WHEREFORE, in view of the foregoing, itis hereby respectfully requested that the defendant's
instant motion be denied and plaintiff's cross-motion be granted, together with any such other and
further relief as to this Honorable Court may deem just and proper.
Dated: Astoria, New York
March 26, 2021
Atl3EftT R. IATEfZA, JR.
SACCO& FILLAS,LLP
6 of 7
FILED: QUEENS COUNTY CLERK 03/30/2021
08/19/2021 03:22
03:51 PM INDEX NO. 703721/2018
NYSCEF DOC. NO. 44
83 RECEIVED NYSCEF: 03/30/2021
08/19/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
Index No.: 703721/2018
THALIA AGATHOCLEOUS,
Plaintiff(s),
-against-
795 FIFTH AVENUE CORPORATION d/b/a THE PIERRE,
Defendant(s).
NOTICE OF CROSS-MOTION TO GRANT LEAVE TO SERVE AN AMENDED BILL OF
PARTICULARS AND OPPOSITION TO DEFENDANT'S, AFFIRMATION IN SUPPORT,
AFFIRMATION IN OPPOSITION AND EXHIBITS
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts
of New York State, certifies that, upon information and belief and reasonable inquiry, the
contentions contained in the annexed documents are not frivolous.
Dated: Astoria, New York
March 26, 2021 Signature:
4Afbéft lQatuza, Jr., Esq.
SACCO & FILLAS, LLP
Attorneys for Plaintiff
31-19 Newtown Avenue
Seventh Floor
Astoria, New York 11102
(718) 746-3440
7 of 7
FILED: QUEENS COUNTY CLERK 03/30/2021
08/19/2021 03:22
03:51 PM INDEX NO. 703721/2018
NYSCEF DOC. NO. 45
83 RECEIVED NYSCEF: 03/30/2021
08/19/2021
CALENDAR #: PC:
CC:
REVIEWED BY: NI:
(( ) C-/
(NI TO BE NTÉIEEi) BY COURT)
Supreme Court of the State of New York
Queens County: Compliance Settlement and Conference Part
Present: Hon. Joseph J. Esposito, Justice
Index Number:
Plaintifffs)
- against - Date RJI filed:
Defendant(s)
Compliance Conference Order
Appearances:
Plaintiff(s)
Defendant(s) / Ó /Aér:
Upon the Preliminary Conference Order dated and following
a Compliance Conference held on __, and it that
appearing
disclosure previously ordered herein has not been completed. or that additional disclosure is
warranted, it ishereby
ORDERED that all pending discoverv-related motions shall be brought to
the attention of this Court
ORDERED that any items of discovery left outstanding from those directed by
prior orders must be specifically identified or are deemed waived, and it isfurther
ORDERED that disclosure shall proceed and be completed in accordance herewith,
and it is further
ORDERED that all proceedings directed herein shall be completed on or before the
dates set forth. No aajournments of the dates set forth herein are to be had without the
Court's written approval. and itis further
ORDERED that any failure to comply strictly with the terms of this order shall be
grounds for the striking of pleadings or other relief pursuant to CPLR 3126.
1
FILED: QUEENS COUNTY CLERK 03/30/2021
08/19/2021 03:22
03:51 PM INDEX NO. 703721/2018
NYSCEF DOC. NO. 45
83 RECEIVED NYSCEF: 03/30/2021
08/19/2021
DOCUMENTS, AUTHORIZATIONS and OTHER DISCOVERY AND INSPECTION, itis
ORDERED that no later than 20 days from the date hereof. the following documents.
authorizations and other items for discovery and inspection shall be produced:
by the Plaintiff(s): All medical reports and authorizations, as directed by 22 NYCRR (
202.17 (b) and. v here the cause of death is in issue. as directed by 22 NYCRR ( 202.17 (d).
by the
Defendant(s) and Third-Party Defendant(s):
DEPOSITIONS:
,
ORDERED that all parties not yet deposed shall appear for deposition(s) on:
o'
date,:.', at time clock at: place
(The date'set for depositions MUST be no more than 30 days from the date hereof. Insert any further
provisions regarding depositions)
l
and it isfurther
ORDERED that depositions shall continue from day to day until completed.
PHYSICAL EXAMINATIONS:
ORDERED that all defendants and other parties desiring to take the physical
examination of an~ aintiff shall designate. in writing. the physician(s) to take such
examination within 14&vs of the completion of the plaintiff s deposition. or within 20 days
of the date hereof in the event plaintiff's deposition has already occurred. All physical
examinations shall be completed within 30 days of the designation of examining physician(s).
Pursuant to 22 NYCRR ) 202.17 [c]a copies of the reports of the examining physician(s) shall
be served on all parties within 45 days after the completion of the examinationa and it is
further
ORDERED: (Insert any further provisions regarding physical examinations)
MISCELLANEOUS:
ORDERED that unless otherwise noted by the court herein, this Order is deemed to have
/'
resolved motion(s), rI
andAsat.a a ursaant4o-tMs~de
t g 4 a ~io~ ZfLaIJW
any pending discovery
CCA i
andit is
ORDERED that any further third-party actions shall be commenced promptly upon discovery
of the identity of the third-party defendant(s), but not more than 30 days after the completion of
2
FILED: QUEENS COUNTY CLERK 03/30/2021
08/19/2021 03:22
03:51 PM INDEX NO. 703721/2018
NYSCEF DOC. NO. 45
83 RECEIVED NYSCEF: 03/30/2021
08/19/2021
depositions, unless for good cause shown, and itis further
ORDERED that parties aggrieved by failures to disclose must move promptly for reliefor
be deemed to have waived the outstanding discovery, and itis further
ORDERED that any statutory stays of disclosure due to the pendency of motions pursuant
to CPLR 3211, 3212 and 3213 are vacated, and allparties are stayed from moving for summary
judgment pending the filing of a note of issue as directed herein, and itis
ORDERED that ifplaintiff is a Medicare recipient or Medicare eligible, he/she shall
within 30 days provide defendant with copies of allcorrespondence to Medicare, as evidence
of plaintiff's efforts to determine the outstanding claim against said plaintiff/beneficiary
should one exist, e.g. final demand or conditional summary from CMS; and it isfurther
ORDERED that any parties failing to appear at this Compliance Conference shall be
bound by the terms of this order, and it isfurther
ORDERED that plaintiff(s) shall provide fresh HIPAA-compliant authorizations for release
of medical records, not later than 60 days prior to and
trial, is further
ORDERED as follows:
Any items left outstanding from those directed by prior orders must be specifically
identified herein or are deemed waived)
ORDERED that plaintiff/ 41 iall
s rve and file a Note of Issue and Certificate
of Reah= on or before (courtuse only) C/ //() 9 , and shall furnish to the Compliance
)
Settlement and Conference Part within ten (1d) da s tilereafter a copy of the filedNote of Issue
and Certificate of Readiness, together with an affidavit of service, and that the failure to do so
shall be grounds for the imposition of sanctions.
SO ORDERED:
Dated: , JSC
Should plaintiff/ need more time to file a Note of Issue, said
party may contact chambers at (718) 298-1089, no later than six (6) weeks before the Note of
Issue is due.
Appearances and acknowledgment of receipt of this Order:
Attorney for Plaintiff Attorney for Defendant
Attorney for Defendant Attorney for Defendant
Attorney for Defendant
3
FILED: QUEENS COUNTY CLERK 03/30/2021
08/19/2021 03:22
03:51 PM INDEX NO. 703721/2018
NYSCEF DOC. NO. 46
83 RECEIVED NYSCEF: 03/30/2021
08/19/2021
For use of Clerk
NOTE OF ISSUE
SUPREME COURT OF THE STATE OF NEW YORK Calendar No.:
COUNTY OF QUEENS Index No: 703721/2018
Name of Judge Assigned
NOTICE OF TRIAL
THALIA AGATHOCLEOUS
JURY
Of allissues
Plaintiff(s), O Of all below
issues specified or attached
hereto
O Trial
without jury
-against-
Filedby attorneyfor PLAINTIFF
Date summons served 03/12/2018
795 FIFTH AVENUE CORPORATION d/b/a Date servicecompleted 03/20/2018
THE PERRE Date issuejoined 04/10/2018
NATURE OF ACTION OR SPECIAL PROCEEDING
Defendant(s).
Tort:
O Motor vehiclenegligence
O Medical malpractice
Other t MUff
(specify)P(/
tort
Contract
Contestedmatrimonial
Uncontested matrimonial
Tax certiorari
Condemnation
Other (notitemizedabove)specify
Thisactionis brought
as a class action
O Thisis a medical
malpracticeaction: prescribed
panel procedures by
the court
rules pursuant
to Judiciary
Law section148-a
have been completed O have not been completed
Amount dê===Ad One Million($1,000,000.00) Dollars ____
Other relief _costs & distürsements
Preferenceclaimedunder Insurance if known:
carrier(s),
on the groundthat
SACCO & FILLAS, LLP
PLAINTIFFS Nick Dematte
31-19 Newtown Avenue LLP
ffe . Address: McMaho::, Martine& Gallagher,
7th Floor
AttorneyforDefendant(s)
Astona, New York 11102 Office& P.O. Address:
795 FIFTH AVENUE CORPORATION
718-746-3440 Phone No.:
Phone No.: 55 Washington Street, 7th Floor
Brooklyn,NY 11201
(212)747-1230
Note: Clerkwillnot accept
this note of issue unless acca.--;-=':d
by a ccitij?catc or, in a medical
of readiness, malpracticeaction,unless the
certij?catc
of readiness previously
has been filed by Court
and the panel rules pursuant
to §148-aof the Judiciary
Preview
FILED: QUEENS COUNTY CLERK 03/30/2021 08/19/2021 03:22 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 44 83 RECEIVED NYSCEF: 03/30/2021 08/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS THALIA AGATHOCLEOUS, 7 20 8 Plaintiff(s), AFFIRMATION IN -against- CROSS- SUPPORT OF MOTION AND 795 FIFTH AVENUE CORPORATION d/b/a THE AFFIRMATION IN PIERRE ' OPPOSITION TO DEFENDANT'S Defendant(s). MOTION ___ Albert R. Matuza, Jr.,Esq., an attorney admitted to practice in the State of New York, affirms the following under penalty of perjury: 1. That I am an associate of the law firm of Sacco & Fillas, LLP, the attorneys of record for the plaintiff, and as such am thoroughly conversant with the facts and circumstances herein based upon the contents of the filemaintained by this office. 2. I make this affirmation in in support of the instant cross-motion for an Order pursuant to New York Civil Practice Law and Rules ("C.P.L.R.") Rule, 3025 (b), and 3025(c), granting leave to amend a pleading and in opposition to the within motion made by the defendant, which seeks an Order: a. Striking the plaintiff's purported "Supplemental" Verified Bill of Particulars, dated February 3, 2021. b. Precluding plaintiff from offering any evidence at trial in connection with the purported "Supplemental" Verified Bill of Particulars, dated February 3, 2021 and allege fracture of right posterior eight rib, blunting of a costophrenic angle, pleural fluid and the lost earnings claim; and c. Granting such other and further relief as the court deems just and proper. 3. Pursuant to the Compliance Conference Order, dated January 9, 2019, plaintiff was to file her Note of Issue and Certificate of Readiness on or before September 6, 2019. In compliance with the rules of this Court, plaintiff filed her Note of Issue and Certificate SACCO& mLAS, LLP 1 of 7 FILED: QUEENS COUNTY CLERK 03/30/2021 08/19/2021 03:22 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 44 83 RECEIVED NYSCEF: 03/30/2021 08/19/2021 of Readiness on September 3, 2019 despite there being outstañdiñg discovery, including defendant's Response to Plaintiff's Post Deposition Demands for Discovery. Annexed "A" hereto as Exhibit please find a copy of the Compliance Conference Order. An-n-exed "B" hereto as Exhibit is a copy of Note of Issue and Certificate of Readiness. Annexed "C" hereto as Exhibit is a copy of the Response to Plaintiff's Post Deposition Demands for Discovery. "new" 4. The purported injuries that plaintiff plead in the Supplemental Verified Bill of Particulars, dated February 3, 2021, were from an X-Ray report from Neighborhood Radiology of the bilateral ribs that was taken on March 1, 2018. A copy of this report is annexed hereto as Exhibit "D". Plaintiff provided an authorization for films and reports from Neighborhood Radiology in Plaintiff's Responses to Combined Demands, dated June 8, 2018, a copy which is also annexed hereto as Exhibit "D". Also included in "D" Exhibit are authorizations for plaintiff's employment fileand file from the Worker's Compensation Board. Another authorization for the file from the Worker's Compensation Board was provided by way of correspondence, dated September 11, 2018. A copy of this correspondence is annexed hereto as Exhibit "E". 5. Plaintiff exchanged Ali Guy, M.D. as an expert pursuant to CPLR Section 3101 (d) on May 12, 2020. In Dr. Guy's report, which was annexed to this exchange, Dr. Guy noted "4" that he reviewed the X-Ray report of the ribs (See paragraph of page "1") and his healed." "4" diagnoses included "Status post fracture of the eight rib, now (See number "Diagnosis" "F" of the Section titled on page 2). Annexed hereto as Exhibit is a copy of the aforesaid expert exchange. 6. The plaintiff appeared for her deposition on March 9, 2019. Plaintiff testified that after her fall she feltpain to her ribs, which was mostly on her right side. See the deposition "G" transcript annexed hereto as Exhibit at p. 42, line 12 to p. 44, line 7. Also, at this deposition defense counsel questioned the plaintiff about her employment, including her amount of pay, work schedule and amount of time she has been employed. At this time, SACCO& FILLAS,LLP 2 of 7 FILED: QUEENS COUNTY CLERK 03/30/2021 08/19/2021 03:22 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 44 83 RECEIVED NYSCEF: 03/30/2021 08/19/2021 the plaintiff was not pursuing a claim for lost wages. See Exhibit "G", p. 12, line 8 to p. 21, line 19. 7. On December 29, 2020, plaintiff commenced a related action against IHMS, Inc. under "H" Index Number 725313/20. Annexed hereto as Exhibit are a copy of the Summons and Complaint and Verified Answer to Verified Complaint. Counsel for the defendant in this action also represents the defendant in the action under Index Number 725313/20. Defense counsel then filed a motion to consolidate. In a stipulation, dated March 5, 2021, the parties in both actions agreed to consolidate for all purposes this action with the action under Index Number 725313/20 and agreed to deadlines pertaining to "I" outstanding discovery. Annexed hereto as Exhibit is a copy of the aforesaid stipulation. 8. In the defendant's within motion, the defendant does not provide any examples of prejudice by service the aforesaid Supplemental Verified Bill of Particulars after the filing of the Note of Issue and Certificate of Readiness and cannot claim any prejudice. Defendant was served with an authorization for the X-Ray report applicable to the "1" claims in response number the Supplemental Verified Bill of Particulars prior to the plaintiff filing her Note of Issue and Certificate of Readiness on September 3, 2019. Likewise, defendant was served with authorizations for the employment fileand Worker's Compensation Board prior the filing of the Note of Issue and Certificate of Readiness and are aware the plaintiff missed time from work and are aware of the amount of any lost wages claim. If the defendant wants a further deposition limited to plaintiff's lost wages claim, the defendant's counsel could have served a notice of deposition or contact this office to schedule it,both of which have not been done. Therefore, itis the position of this office that defendant has waived their right to a further deposition. Currently, there is no trialdate and due to the COVID-19 pandemic, likely will not be a trialdate for quite a bit of time, thus giving defense more than enough time to properly prepare any defenses of these claims in the aforesaid SACCO& FILLAS,LLP 3 of 7 FILED: QUEENS COUNTY CLERK 03/30/2021 08/19/2021 03:22 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 44 83 RECEIVED NYSCEF: 03/30/2021 08/19/2021 Supplemental Verified Bill of Particulars. Further, the two related actions were just consolidated. 9. However, if thisCourt were to find that this Supplemental Verified Bill of Particulars is an amendment, then this Court should order the document be titledan Amended Verified Bill of Particulars or plaintiff should be granted leave to serve an Amended Verified Bill of Particulars. ARGUMENT IF THIS COURT DOES NOT FIND THE BILL OF PARTICULARS TO BE A SUPPLEMENT, THEN PLAINTIFF SHOULD BE GRANTED LEAVE TO AMEND HER PLEADING A Leave to amend should be eranted under C.P.L.R., R. 3025(b). 10. Leave should be granted under CPLR 3025 (b). Under New York law, it iswell settled that in the absence of prejudice, a plaintiff should be permitted to amend a pleading to add meritorious allegations (C.P.L.R. 3025[b]); A. W. v. County of (4th Oneida. 34 A.D.3d 1236. 827 N.Y.S.2d 790 Dept., 2006); see also Greco v. Five Com.• (2nd Garage 123 A.D.2d 422 506 N.Y.S.2d 726 Dept., 1986)[permitting injury" plaintiff to amend the pleading to include a specific allegation of "serious even after defendants move for summary judgment on the question of "serious (3"I injury"][empliasis added]; Secore v. Allen, 27 A.D.3d 825, 811 N.Y.S.2d 170 Dept., 2006)(permitting plaintiff to amend his pleading to allege specifically that his loss" loss exceeded "basic economic under C.P.L.R., R. 3016(g), where pleadings and disclosure gave defendants notice of the occurrences and plaintiffs losses, and noting that potential for increased liability of defendants could not qualify as prejudice warranting denial of the amendment]. Here, no prejudice is possible the defendant had since June of 2018 an authorization for the X- because, already SACCO& FILLAS,LLP 4 of 7 FILED: QUEENS COUNTY CLERK 03/30/2021 08/19/2021 03:22 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 44 83 RECEIVED NYSCEF: 03/30/2021 08/19/2021 Ray report and films showing the fractured ribs. Plaintiff testified to injuring her ribs at her deposition. Dr. Guy offered a diagnosis pertaining to the ribs. Defendant already questioned the plaintiff on her employment at her deposition and this office already provided authorizations for plaintiff's employment file and file from the Worker's Compensation Board. There is no trial date in this action. Defendant is not prejudiced by any delay in including these claims in any Verified Bill of Particulars. 11. Stated simply, with the disclosure of the pertinent discovery and the testimony had, and the arguments made, itwould be nearly impossible for the defense to argue that, there is prejudice in the leave being granted. And, the proposed supplement/amendment does not add a new cause of action, does not add a new allegation, but, merely refines and adds clarification to the pleading (Bill of Particulars). It contains minor "refinements, and does not amend/change the allegations that were already there, beyond supplementing them as is done regularly through the preparation of trial. Here the amendment sought is to simply ensure that, it isincluded in the claim explicitly. B. Leave to amend should be eranted under C.P.L.R.. R. 3025(c). 12. Further, under New York law, it iswell settled that in the absence of prejudice or surprise, a plaintiff should be permitted to amend a pleading to conform to the evidence adduced. Indeed, "[1]eave to conform a pleading to the proof pursuant to C.P.L.R. 3025(c) should be freely granted absent prejudice or surprise resulting from delay.'.' the Alomia v. New York City Tr. Auth., 292 A.D.2d 403, 406, 738 N.Y.S 2d 695 (2nd Dept., 2002); see also Worthen-Caldwell v. Special Touch Home Care (2nd Serv.. Inc.. 78 A.D.3d 822, 911 N.Y.S.2d 122 Dept., 2010). In fact, relative "lateness" Worthen- is no--absent significant prejudice-------even a barrier to amendment. Caldwell v. Special Touch Home Care Serv.. Inc.. 78 A.D.3d at 822[granting of SACCO& FILLAS,LLP 5 of 7 FILED: QUEENS COUNTY CLERK 03/30/2021 08/19/2021 03:22 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 44 83 RECEIVED NYSCEF: 03/30/2021 08/19/2021 amendment was proper despite delay]; see also, Dimoulas v. Roca. 120 A.D.3d 1293, (2nd 993 N.Y.S.2d 56 Dept. 2014)[granting of leave, on even of trialwas proper given totality of circumstances]; Eisenhauer v. Brun 41 Misc.3d 667, 971 N.Y.S.2d 200 (Westchester Sup. 2013)[defects in pleading- failure to set forth facts to support claim of sole ownership-were not a barrier to amendment through trial motion to amend pleading to conform with proof]; Dickstein v. Doelia, 303 A.D.2d 443, 757 (2nd N.Y.S.2d 443 Dept., 2003). Further, there is no prejudice by an amendment when the defendant has been on notice that catheter care was an issue. Durant v. Glen Cove Center for Nursing & Rehabilitation. et al., Index No. 703555/16 (Queens Sup. 2019). 13. Given the above, and the fact that there is no surprise or prejudice, if this Court does not find the aforesaid bill of particulars to be a supplement, this Honorable Court should grant leave to consider the previously served supplemental pleading as an amendment. 14. This is the only time relief requested herein has been sought from any court. WHEREFORE, in view of the foregoing, itis hereby respectfully requested that the defendant's instant motion be denied and plaintiff's cross-motion be granted, together with any such other and further relief as to this Honorable Court may deem just and proper. Dated: Astoria, New York March 26, 2021 Atl3EftT R. IATEfZA, JR. SACCO& FILLAS,LLP 6 of 7 FILED: QUEENS COUNTY CLERK 03/30/2021 08/19/2021 03:22 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 44 83 RECEIVED NYSCEF: 03/30/2021 08/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS Index No.: 703721/2018 THALIA AGATHOCLEOUS, Plaintiff(s), -against- 795 FIFTH AVENUE CORPORATION d/b/a THE PIERRE, Defendant(s). NOTICE OF CROSS-MOTION TO GRANT LEAVE TO SERVE AN AMENDED BILL OF PARTICULARS AND OPPOSITION TO DEFENDANT'S, AFFIRMATION IN SUPPORT, AFFIRMATION IN OPPOSITION AND EXHIBITS Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed documents are not frivolous. Dated: Astoria, New York March 26, 2021 Signature: 4Afbéft lQatuza, Jr., Esq. SACCO & FILLAS, LLP Attorneys for Plaintiff 31-19 Newtown Avenue Seventh Floor Astoria, New York 11102 (718) 746-3440 7 of 7 FILED: QUEENS COUNTY CLERK 03/30/2021 08/19/2021 03:22 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 45 83 RECEIVED NYSCEF: 03/30/2021 08/19/2021 CALENDAR #: PC: CC: REVIEWED BY: NI: (( ) C-/ (NI TO BE NTÉIEEi) BY COURT) Supreme Court of the State of New York Queens County: Compliance Settlement and Conference Part Present: Hon. Joseph J. Esposito, Justice Index Number: Plaintifffs) - against - Date RJI filed: Defendant(s) Compliance Conference Order Appearances: Plaintiff(s) Defendant(s) / Ó /Aér: Upon the Preliminary Conference Order dated and following a Compliance Conference held on __, and it that appearing disclosure previously ordered herein has not been completed. or that additional disclosure is warranted, it ishereby ORDERED that all pending discoverv-related motions shall be brought to the attention of this Court ORDERED that any items of discovery left outstanding from those directed by prior orders must be specifically identified or are deemed waived, and it isfurther ORDERED that disclosure shall proceed and be completed in accordance herewith, and it is further ORDERED that all proceedings directed herein shall be completed on or before the dates set forth. No aajournments of the dates set forth herein are to be had without the Court's written approval. and itis further ORDERED that any failure to comply strictly with the terms of this order shall be grounds for the striking of pleadings or other relief pursuant to CPLR 3126. 1 FILED: QUEENS COUNTY CLERK 03/30/2021 08/19/2021 03:22 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 45 83 RECEIVED NYSCEF: 03/30/2021 08/19/2021 DOCUMENTS, AUTHORIZATIONS and OTHER DISCOVERY AND INSPECTION, itis ORDERED that no later than 20 days from the date hereof. the following documents. authorizations and other items for discovery and inspection shall be produced: by the Plaintiff(s): All medical reports and authorizations, as directed by 22 NYCRR ( 202.17 (b) and. v here the cause of death is in issue. as directed by 22 NYCRR ( 202.17 (d). by the Defendant(s) and Third-Party Defendant(s): DEPOSITIONS: , ORDERED that all parties not yet deposed shall appear for deposition(s) on: o' date,:.', at time clock at: place (The date'set for depositions MUST be no more than 30 days from the date hereof. Insert any further provisions regarding depositions) l and it isfurther ORDERED that depositions shall continue from day to day until completed. PHYSICAL EXAMINATIONS: ORDERED that all defendants and other parties desiring to take the physical examination of an~ aintiff shall designate. in writing. the physician(s) to take such examination within 14&vs of the completion of the plaintiff s deposition. or within 20 days of the date hereof in the event plaintiff's deposition has already occurred. All physical examinations shall be completed within 30 days of the designation of examining physician(s). Pursuant to 22 NYCRR ) 202.17 [c]a copies of the reports of the examining physician(s) shall be served on all parties within 45 days after the completion of the examinationa and it is further ORDERED: (Insert any further provisions regarding physical examinations) MISCELLANEOUS: ORDERED that unless otherwise noted by the court herein, this Order is deemed to have /' resolved motion(s), rI andAsat.a a ursaant4o-tMs~de t g 4 a ~io~ ZfLaIJW any pending discovery CCA i andit is ORDERED that any further third-party actions shall be commenced promptly upon discovery of the identity of the third-party defendant(s), but not more than 30 days after the completion of 2 FILED: QUEENS COUNTY CLERK 03/30/2021 08/19/2021 03:22 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 45 83 RECEIVED NYSCEF: 03/30/2021 08/19/2021 depositions, unless for good cause shown, and itis further ORDERED that parties aggrieved by failures to disclose must move promptly for reliefor be deemed to have waived the outstanding discovery, and itis further ORDERED that any statutory stays of disclosure due to the pendency of motions pursuant to CPLR 3211, 3212 and 3213 are vacated, and allparties are stayed from moving for summary judgment pending the filing of a note of issue as directed herein, and itis ORDERED that ifplaintiff is a Medicare recipient or Medicare eligible, he/she shall within 30 days provide defendant with copies of allcorrespondence to Medicare, as evidence of plaintiff's efforts to determine the outstanding claim against said plaintiff/beneficiary should one exist, e.g. final demand or conditional summary from CMS; and it isfurther ORDERED that any parties failing to appear at this Compliance Conference shall be bound by the terms of this order, and it isfurther ORDERED that plaintiff(s) shall provide fresh HIPAA-compliant authorizations for release of medical records, not later than 60 days prior to and trial, is further ORDERED as follows: Any items left outstanding from those directed by prior orders must be specifically identified herein or are deemed waived) ORDERED that plaintiff/ 41 iall s rve and file a Note of Issue and Certificate of Reah= on or before (courtuse only) C/ //() 9 , and shall furnish to the Compliance ) Settlement and Conference Part within ten (1d) da s tilereafter a copy of the filedNote of Issue and Certificate of Readiness, together with an affidavit of service, and that the failure to do so shall be grounds for the imposition of sanctions. SO ORDERED: Dated: , JSC Should plaintiff/ need more time to file a Note of Issue, said party may contact chambers at (718) 298-1089, no later than six (6) weeks before the Note of Issue is due. Appearances and acknowledgment of receipt of this Order: Attorney for Plaintiff Attorney for Defendant Attorney for Defendant Attorney for Defendant Attorney for Defendant 3 FILED: QUEENS COUNTY CLERK 03/30/2021 08/19/2021 03:22 03:51 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 46 83 RECEIVED NYSCEF: 03/30/2021 08/19/2021 For use of Clerk NOTE OF ISSUE SUPREME COURT OF THE STATE OF NEW YORK Calendar No.: COUNTY OF QUEENS Index No: 703721/2018 Name of Judge Assigned NOTICE OF TRIAL THALIA AGATHOCLEOUS JURY Of allissues Plaintiff(s), O Of all below issues specified or attached hereto O Trial without jury -against- Filedby attorneyfor PLAINTIFF Date summons served 03/12/2018 795 FIFTH AVENUE CORPORATION d/b/a Date servicecompleted 03/20/2018 THE PERRE Date issuejoined 04/10/2018 NATURE OF ACTION OR SPECIAL PROCEEDING Defendant(s). Tort: O Motor vehiclenegligence O Medical malpractice Other t MUff (specify)P(/ tort Contract Contestedmatrimonial Uncontested matrimonial Tax certiorari Condemnation Other (notitemizedabove)specify Thisactionis brought as a class action O Thisis a medical malpracticeaction: prescribed panel procedures by the court rules pursuant to Judiciary Law section148-a have been completed O have not been completed Amount dê===Ad One Million($1,000,000.00) Dollars ____ Other relief _costs & distürsements Preferenceclaimedunder Insurance if known: carrier(s), on the groundthat SACCO & FILLAS, LLP PLAINTIFFS Nick Dematte 31-19 Newtown Avenue LLP ffe . Address: McMaho::, Martine& Gallagher, 7th Floor AttorneyforDefendant(s) Astona, New York 11102 Office& P.O. Address: 795 FIFTH AVENUE CORPORATION 718-746-3440 Phone No.: Phone No.: 55 Washington Street, 7th Floor Brooklyn,NY 11201 (212)747-1230 Note: Clerkwillnot accept this note of issue unless acca.--;-=':d by a ccitij?catc or, in a medical of readiness, malpracticeaction,unless the certij?catc of readiness previously has been filed by Court and the panel rules pursuant to §148-aof the Judiciary